Lights, camera, judgment — but will justice be served?

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England and Wales are following the lead of America and Scotland by allowing cameras in court

Edward Fennell

Last updated at 12:01AM, October 20 2011

The Times/One Essex Court Law Awards 2012 look at whether cameras should be allowed into courts. Will the move bring enlightenment or just provide entertainment? Edward Fennell introduces the topic for this year’s student essay competition

The announcement last month by Kenneth Clarke, the Justice Secretary, that
cameras should be allowed into the lower courts for the first time opens up
a new era for the justice system in England and Wales.

Although the initiative will be on a small scale — limited at first to
judgments in the Court of Appeal — it would end a ban imposed nearly 100
years ago, bringing the courts into line with present-day technology.

This is the topic for this year’s Times Law Awards essay
competition sponsored by One Essex Court — Cameras in court: justice’s
loss or gain?

“The idea that justice must both be done and seen to be done is well
established and means that there is no problem in principle about having
cameras in court,” Emma Himsworth, a One Essex Court barrister, says. “But
when it comes to the practicalities, there is a range of issues about how
justice might be affected, which we would like essayists to discuss.”

Entrants should look beyond the immediate announcement and consider the wider
implications for justice of using video technology to record and then
broadcast, narrowcast or webcast proceedings. In essence, the question
involves looking at how the workings of the justice system and public
confidence in it would be enhanced, compromised or, indeed, unaffected, by
opening the courts to a bigger audience than fits in the public gallery.

The move comes about after a long campaign by broadcasters, led by ITN and Sky
Television, and has been duly welcomed by them and other media. But judges,
barristers and some politicians have reacted more cautiously. They have
raised practical concerns, such as who would pay for the filming and whether
it would be compulsory for every case.

There are also objections of principle: MPs and peers have warned that the
courts will become reality TV akin to the US television show Judge Judy,
with only salacious cases being screened. Is it, they ask, really about
enlightenment as much as entertainment — and prurient entertainment at that?

Key to any televising of trials is what cases should be screened, what aspects
of them, and above all, who would decide, Himsworth says. Under the
proposals the final decision on filming is likely to be left to the judge.
But that in turn raises questions: a judge may feel justified in excluding
cameras in cases involving vulnerable people (minors or rape victims) or to
keep confidential the identities of family members (in cases such as that
last month of the brain-damaged woman, “M”, whose family made an application
for her to be allowed to die).

But is the judge best placed to decide what otherwise would be in the public
interest to be screened? And what about participants? If filming is to be
extended to criminal trials, what of the views of the accused, the
witnesses, the jurors? That could mean that many cases are never exposed to
the wider public. And even if they are, filming of witnesses or jurors may
be barred. So how meaningful would broadcasting be? As with the Supreme
Court now, where cameras are allowed, the public would glimpse only the tip
of the justice edifice.

If a judge does permit filming, who decides what aspects of the case should be
broadcast to the public? Whether selection is by civil servants or
broadcasting organisations, other criteria — commercial, social or political
— could kick in. In Scotland, where cameras have been given limited access
to the courts for some years, the appeal of the Lockerbie bomber Abdul Baset
Ali al-Megrahi was televised in 2002 but little since; perhaps confirming
that broadcasters, given the choice, prefer highly publicised and
controversial cases. Yet newspapers make such decisions daily.

Other practical problems arise: should any appeal and its result also be
publicised? No such rule exists for print media at the moment. All these
difficulties need to be addressed even before issues of the impact of
cameras in court. Much has been made of the possibility that some
barristers, despite their natural modesty, would be unable to resist the
temptation of playing to the gallery — or rather an audience of,
potentially, millions. This might not affect the verdict of the jury but it
could skew the way in which the judicial process is perceived. Will coverage
end up merely as “Barristers’ Biggest Blunders”? Or might “Weird Witnesses”
steal the scene?

So is it better that the public should see the justice system as it is —
rather than rely for its views on the trials of Michael Jackson’s doctor or
Amanda Knox — or will this expose the courts to a risk of greater public
disillusionment, whether over the quality of advocacy, interventions by the
judge or the jury verdicts? Above all, sentencing will potentially give rise
to controversy. “If cameras had been in Court 5 at Basildon this morning
they would have had continuous bleeps as a torrent of vitriol issued from my
client as he received 20 years,” said one criminal barrister.

It might make compelling viewing. But the question is whether justice is well
served. After all, as far back as 400BC Aristophanes, the Athenian
playwright, highlighted in The Wasps that when the court process is
open to hoi polloi the motive to attend is entertainment at the excitement
of the verdict rather than edification at the application of justice. Have
we moved on?

The rules

• The competition is open to all students registered with an education body
based in the UK

• Send entries of no more than 1,000 words to The Times Law
Awards, c/o One Essex Court, Temple, London EC4Y 9AR or by e-mail to tla@oeclaw.co.uk
The closing date is 6pm on Monday, November 28, 2011 The shortlisted
entrants will be notified at the end of January and the awards dinner will
be held in February or March 2012 First prize: £3,500; second prize: £2,500;
third prize: £1,500. Plus: three runners-up prizes of £1,000 each.

• The panel of judges includes Kenneth Clarke, the Lord Chancellor and
Secretary of State for Justice; Lord Grabiner, QC; James Harding, Editor of The
Times; and Emma Himsworth, of One Essex Court.